Court Rejects Environmental Consultant’s Third Party Claim Against Prior Owner/Occupants

by Stan Berger, Fogler Rubinoff

On March 22, 2018 the Ontario Superior Court of Justice in MVL Leasing Ltd. v CCI Group Inc. 2018 ONSC 1800 granted Rule 21 motions striking third party claims brought by an environmental consultant who was being sued by a purchaser of property for professional negligence and breach of contract. The lawsuit alleged that the plaintiff was led into closing the sale by the consultant’s Phase 1 and Phase 2 Environmental Site Assessments. The property turned out to be contaminated. The consultant in turn alleged that the contamination was caused by one or more businesses operated by the third parties. The consultant requested contribution indemnity from the third parties on 6 different grounds: nuisance, loss or damage caused by a spill pursuant to s.99 of Ontario’s Environmental Protection Act, the occupier’s duty under the Occupiers’ Liability Act to ensure the safety of persons entering upon the property, negligence, liability under the Negligence Act and unjust enrichment. The consultant argued that if found liable in the main action, it would have incurred pecuniary losses as a direct result of the spill, those damages being the plaintiff’s remediation costs and or the decrease in the property’s value.

Court’s Reasons for Rejecting the Third party Claims

The nuisance claim was rejected on the basis that the consultant did not own, occupy or possess the property, or any adjacent or nearby property impacted by the alleged contamination. The s.99 EPA claim was only available where the damages were directly caused by the spill and that was not the case. The occupier liability claim was rejected because the consultant suffered no damages as a result of entering the property in question. With respect to the negligence claim, the Court refused to impose a new duty of care upon the third parties. There was no proximity in the relationship between the consultant and the third parties. The potential economic harm to the consultant was not a reasonably foreseeable consequence of the alleged acts or omissions of the previous third party owners/occupiers. The Negligence Act claim was rejected on the basis that the consultant and the third parties did not meet the test under the Act of being concurrent tortfeasors for contribution and indemnity to be available. The plaintiff’s actual or potential causes of action against the consultant and the third parties were entirely different in nature. The damages allegedly caused by the third parties were different and discrete from those caused by the consultant. Finally, the unjust enrichment claim was rejected as the consultant had not pleaded any direct conferral of a benefit upon the third parties and the consultant had not suffered a corresponding detriment. If the consultant had incurred a detriment in the future by the plaintiff succeeding with its action, that detriment only related to the breach of contract and/or negligence of the consultant and the third parties were not parties to that relationship.

What can we take away from this Decision?

In order to sustain a third party claim against historic owners or occupiers of contaminated property, environmental consultants who are sued by a purchaser of contaminated property, will have to show that that the historic owners/occupiers were somehow responsible for or at least connected to the contractual breach or negligence which the purchaser alleges against the consultant.

This article was previously published by Fogler, Rubinoff LLP and can be found on the firm’s website.

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in Environmental Law.  He was called to the Ontario Bar in 1981.  He joined the law firm of Fogler Rubinoff in 2013.

 

U.S. EPA’s Enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule

By Dianne R Phillips, Holland & Knight

On March 28, 2018, the Office of the Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) issued a Project Notification indicating its plans to begin preliminary research to evaluate the EPA’s implementation and enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule (RRP Rule). The RRP Rule, which is part of the federal Toxic Substances Control Act, is intended to ensure that owners and occupants of pre-1978 “target housing” and “child-occupied facilities” receive information on lead-based paint hazards before renovations begin, that individuals performing such renovations are properly trained and certified, and that renovators and workers follow specific lead-safe work practices during renovations to reduce the potential for exposure to lead. Although use of lead-based paint in dwellings was prohibited after 1978, EPA estimates it is still present in approximately 30 million homes across the United States. The RRP Rule is intended to protect children and others vulnerable to lead exposure due to the health effects associated with lead poisoning.

Enforcement of the RRP Rule, along with the other lead-based paint rules, has been a priority of EPA. For fiscal year ending 2017, according to EPA’s Oct. 27, 2017 press release from October 2016 through September 2017, EPA finalized 121 civil settlements for alleged violations of one or more of the three lead-based paint rules–the RRP Rule; the Lead Disclosure Rule; and the Lead-based Paint Activities Rule for abatements–and filed three complaints for ongoing actions. EPA and the U.S. Department of Justice also prosecuted one criminal case involving violations of lead paint laws and finalized two Clean Air Act settlements that included lead paint abatement projects in local communities. The OIG Project Notification indicates that the “objective for this project is to determine whether EPA has an effective strategy to implement and enforce the lead-based paint RRP.” Only time will tell what is meant by that.

____________________________

About the Author

Dianne R. Phillips is an attorney in Holland & Knight’s Boston office who concentrates her practice in litigation, regulatory, energy and environmental law. As former assistant general counsel for Suez LNG North America LLC (now known as Engie North America) and its wholly owned subsidiary, Distrigas of Massachusetts LLC, Ms. Phillips was involved in all aspects of regulatory compliance for the nation’s oldest, continuously operating liquefied natural gas (LNG) import terminal located in Everett, Mass., including safety and security. Her LNG experience includes advising clients with respect to specialized regulatory compliance under 49 C.F.R. Part 193 and NFPA 59A.

Job Opportunity: Coordinator of Emergency Planning, Toronto

Coordinator, Emergency Planning
Job Classification Title COORDINATOR EMERGENCY PLANNING PH
Job ID # 2300867 X
Division Public Health
Section Performance & Standards
Work Location 277 VICTORIA ST.
Job Stream Health
Job Type Permanent, Full-Time
Salary/Rate $94,421.60 – $110,929.00 / Year
Hours of Work (bi-weekly) 70.00
Shift Information Monday to Friday – 35 Hours
Affiliation Non-Union
Number of Positions Open 1
Posting Date 16-Apr-2018
Closing Date 30-Apr-2018
Job Description
 Major Responsibilities:

  • Develops and maintains components of the Toronto Public Health Emergency Plan and assigned emergency support functions, risk specific plans and other supporting documents, taking into consideration current developments within the programs, corporate policies and practices, legislation and initiatives by other levels of government.
  • Facilitates the promotion and implementation of a formalized risk management system and the setting of risk control measures and practices by operational areas through consistency in philosophical, policy and practical approaches across all risk frameworks.
  • Develops an annual risk management work plan, responds strategically to emerging business specific legislative, regulatory and policy changes by assessing the risk impacts on TPH processes and/or practices.
  • Ensures proper and consistent internal risk controls, system standards and policies and practices are maintained and that requirements are met.
  • Plans and delivers risk management training to Toronto Public Health staff.
  • Coordinates assigned projects, ensuring effective teamwork, communication practices and quality of work.
  • Participates on local, provincial and federal emergency planning committees/workgroups and maintains links with other key stakeholders in emergency planning, response and recovery activities.
  • Plan and delivers training to Toronto Public Health staff to ensure that they are prepared to respond to emergencies. Maintains a current database of training sessions attended by Toronto Public Health staff.
  • Participates with Toronto’s Office of Emergency Management to both develop and facilitate training for emergency responders, managers, supervisors and staff who may be called upon to assist and support the City in its response to an emergency, including city-wide emergency exercises.
  • Delivers presentations to internal and external audiences on emergency preparedness, response and recovery elements.
  • Develops materials and content for the Emergency Planning and Preparedness internet and intranet sites as communication vehicles to educate staff on emergency preparedness measures.
  • Identifies and develops business cases on logistical elements that are necessary for effective emergency response.
  • Prepares reports for Toronto Public Health and the Board of Health.
  • Conducts debriefings on major health events, drills and exercises and evaluates the response against the emergency plan.
  • Ensures work is undertaken in a manner that complies with and supports City compliance with the Ontario Occupational Health and Safety Act (OHSA), other relevant codes and regulations and City policies. The above reflects the general details considered necessary to perform the principle functions and shall not be construed as a detailed description of all the work requirements inherent in the job.

Key Qualifications:

  1. Recognized university degree preferably in Emergency Management, Environmental Health, or Nursing.
  2. Post-secondary education or the appropriate combination of skills and relevant experience in the field of risk management.
  3. Extensive experience in the development, implementation and evaluation of risk management methodologies and strategies.
  4. Experience in emergency planning; developing, implementing and evaluating emergency planning and preparedness programs.
  5. Experience in the development, implementation and evaluation of risk management methodologies and strategies.
  6. Experience leading and implementing change, including action planning to support the development and implementation of risk mitigation plans.
  7. Extensive experience in developing and delivering staff training.
  8. Familiar with all relevant legislation (Municipal/Provincial/Federal) relating to emergency management.
  9. Ability to establish, coordinate and maintain effective working relationships with internal and external partners including other levels of government, public and community agencies.
  10. Excellent analytical and organizational skills with the ability to work individually or in a multidisciplinary environment and meet deadlines.
  11. Effective written and oral communication skills, presentation and facilitation skills including clear language writing.
  12. Experience using a variety of computer applications including MSOffice, including Word, Excel and PowerPoint.
  13. Effective problem-solving and conflict management skills.
  14. Possession of a valid Class “G” Ontario Driver’s License and access to a vehicle.

Accommodation:  The City of Toronto is committed to fostering a positive and progressive workforce reflecting the citizens we serve. We provide equitable treatment and accommodation to ensure barrier-free employment in accordance with the Ontario Human Rights Code, Accessibility for Ontarians with Disabilities Act and the City of Toronto’s Accommodation Policy. You can request for accommodation related to the protected grounds at any stage of the City’s hiring process, i.e., application, assessment and placement.

If you are an individual with a disability and you need accommodation in applying for this position, please email us at application.accommodation1@toronto.ca, quoting the job ID #2300867 and the job classification title.

If you are invited to participate in the assessment process, we ask that you provide your accommodation needs in advance at that time. Please be advised that you may be requested to provide medical/other documentation to Human Resources to ensure that appropriate accommodation is provided to you throughout the hiring process.

To apply online, visit the Toronto website.

U.S. Environmental Industry generates $388 billion in revenues in 2017

The U.S. environmental industry generated revenues of $388 billion in 2017, up from $370 million in 2016, according to preliminary estimates by Environmental Business International Inc. (EBI), publisher of Environmental Business Journal (EBJ). The environmental industry’s annual growth rate of 4.8% in 2017 represents a steady increase from 3.6% in 2016 and 2.1% in 2015.

Every year, EBJ’s Annual Industry Overview presents estimates and forecasts for 13 business segments, in addition to offering perspective on how the environmental industry is responding to changing macroeconomic conditions and regulatory and policy trends. This year’s summary reviews conditions one year into the Trump Administration.

To purchase EBJ’s Annual Industry Overview and receive statistical summaries of the industry in 13 segments with multiple charts featuring revenues, growth, number of companies, forecasts, growth factors and revenue breakdowns by client, media and function, visit the EBI website.

Weather Stations for Public Safety/Emergency Management

Presented by WeatherHawk

To help contain natural disasters or man-made ones, firefighters, police, emergency medical workers, and government officials must track conditions in the vicinity of an emergency. WeatherHawk weather stations can be a vital part of modern public safety equipment and can be set-up on site in less than 15 minutes by one responder wearing full protective equipment.

WeatherHawk meets the requirements of first responders with a cost-effective, easy-to-use weather monitoring and data logging system.  Available at preferred Federal Government pricing under EPA BPA #EP09W000552.

 

WeatherHawk-Pro software is CAMEO/ALOHA compliant (NOTE: Specify 2 sec scan update program at the time of order).

WeatherHawk is lightweight and portable, so it’s easy to move into remote or treacherous areas.

WeatherHawk doesn’t need to be placed near a power source because the system is battery powered and can operate for up to 4 days without an external power source. An optional solar panel enables unlimited operation in remote areas or where electrical power is not available.

The wireless WeatherHawk can operate independently at a distance of a line-of-sight range up to ½ mile from the base computer, ensuring the safety of personnel. Optional high gain directional antennas can increase that range to over 7 miles under most conditions.

Portability, quick installation, rugged construction, automatic data storage, and Internet compatibility make WeatherHawk the choice for first responders with limited equipment budgets and minimal time to train on special equipment.  Save property, save lives. Choose WeatherHawk for your weather station needs.





Eco Waste Solutions to demonstrate WTE technology under US Department of Defense ESTCP Program

The US Department of Defense’s Environmental Research Programs has announced that Eco Waste Solutions has been approved to move forward with its Deployable Waste-to-Energy Convertor for Expeditionary Bases (DWECX) with Thermal Energy to Electrical Power System (TEEPS); a project in collaboration with Ethosgen and their teammate Rockwell Collins. Ethosgen will provide project management and system engineering while Rockwell Collins will provide detailed design and hardware for the integrated TEEPS.

“We’ve known for a long time that one of the major environmental challenges facing the Department of Defense is dealing with solid waste on expeditionary bases,” says Jean Lucas, President of Eco Waste. “Military installations often use open burn pits, which pose significant risks to the health of military troops, local populace, and the environment. Our containerized waste systems can solve this problem, as they are easily deployable, operate in extreme climates, and don’t create airborne health hazards. The ESTCP project gives us an opportunity to take this further and demonstrate a practical approach to small-scale power generation from waste.”

Jean Lucus, President and CEO for Eco Waste Solutions

“This is a tremendous opportunity for the US military to position itself on the cutting edge of waste-to-energy technology,” says James Abrams, founder and President of EthosGen. “Successful small-scale waste-to-energy simply hasn’t been done like this before, and it could transform the way all expeditionary forces deal with waste.”

The ESTCP’s goal is to identify and demonstrate the most promising innovative and cost-effective technologies and methods that address the DoD’s high-priority environmental requirements. To ensure that demonstrated technologies have real impact, ESTCP collaborates with end-users and regulators throughout the process of development and execution. Demonstration results are subject to rigorous technical reviews to ensure that conclusions are well-supported by data.

The DOD has committed to addressing burn pit issues and meeting its operational energy objectives, but solutions need to meet requirements for mobility, simplicity and efficiency. Eco Waste’s partnership with EthosGen solves these challenges.

“Our containerized waste systems have been used on military bases around the world for more than 10 years,” notes Lucas, recognized for her work on small-scale waste-to-energy. “However, the challenge has been finding an appropriate energy recovery technology to integrate with them. Our Deployable Waste-to-Energy Converter for Expeditionary Bases (DWECX) with Thermal Energy to Electrical Power System (TEEPS) can do both – while still maintaining a footprint no larger than the 20-foot ISO container required by expeditionary forces.”

About Eco Waste Solutions

Eco Waste Solutions (EWS) is a world leader in delivering modular thermal waste conversion solutions for military, industry and communities.  EWS delivers proven, bankable, waste management and energy-from-waste technologies. With clients as varied as Canadian Department of National Defence, the Swedish Armed Forces, and mining companies with projects all over the world, EWS continues to set the standard for waste management technology in North America and worldwide. www.ecosolutions.com

About EthosGen

EthosGen has established itself as an emerging global leader in deploying modular utility-grade systems to meet onsite electrical power and heating/cooling needs.  EthosGen offers scalable, flexible, packaged mechanical systems that convert heat from otherwise wasted sources such as waste streams, industrial processes, or geothermal heat to produce valuable energy at double-digit efficiencies.  EthosGen contributes to our clean energy future through its packaged solutions that are within reach of nearly anyone, anywhere. www.ethosgen.com

About Rockwell Collins

Rockwell Collins (NYSE: COL) is a leader in aviation and high-integrity solutions for commercial and military customers around the world. Every day we help pilots safely and reliably navigate to the far corners of the earth; keep warfighters aware and informed in battle; deliver millions of messages for airlines and airports; and help passengers stay connected and comfortable throughout their journey. As experts in flight deck avionics, cabin electronics, cabin interiors, information management, mission communications, and simulation and training, we offer a comprehensive portfolio of products and services that can transform our customers’ futures. www.rockwellcollins.com

Innovative Technology to streamlines brownfield industry projects

As reported by Martin Menachery in Arabian Oil and Gas, Over 95% of projects in the process industry in the Middle East (and comparable percentages around the world) are retrofits or expansions of existing plants that seek to increase capacity, comply with regulations, or introduce new technology to improve performance.

Moreover, often the building of a new plant is done on the brownfield site of an existing facility. For all these projects, capturing and modelling the existing context is critical to decision making and both conceptual and detailed engineering design. 3-D Software reality modelling technology is increasingly being leveraged to support these critical workflows.

In this year’s submissions for the ‘Be Inspired Awards’, there are five excellent examples using reality modelling technology in the process industry, demonstrating how this technology has now become an essential part of any brownfield or greenfield plant design project.

UCB, a global biopharmaceutical company, is using reality modelling for its iconic manufacturing plant in Belgium (which was established in 1928) to assess options and communicate ideas to help this complex and established site become carbon neutral by the year 2030.

ContextCapture was used to create an engineering-ready 3D model of the entire complex, including all the buildings, production facilities, roads, and parking areas, using both drone and terrestrial photography.

This context enabled the engineering team to quickly produce a 3D model to convey ideas and determine options. Point-cloud data from laser scans was then added to the model to enable accurate quantities to be calculated and precise measurements to be given to contractors for the priority work packages.

ABS Steel needed to modernise the fume extraction system for its large steel complex in Udine, Italy, to meet new regulations. It did not have a survey of the entire site since the complex was the result of a merger of two plants in 1988. ABS Steel awarded the contract to BM Engineering to survey the site.

It used laser scanning for inside the plant and photography for outside the plant, creating a combined engineering-ready model in MicroStation using ContextCapture and Bentley Pointools, which was read into AECOsim Building Designer and used to design the new fume extraction system. The model was then used to test the structural integrity of the aging parts of the factory.

By using a drone to capture photos of the roofs of the industrial buildings, and using ContextCapture to accurately create the 3D model, the project avoided the need to construct at least 70,000 temporary structures (guardrails, walkways, ladders, PPE, etc.) to conduct the survey work.

Flightline Geographics (FlightlineGeo) solved a problem for an owner of an ethanol plant in Kansas, United States, plant expansion of which was impeded by a lack of a drainage plan that would satisfy the local municipality. Traditional alternative methods, such as ground surveying and either ground or aerial LiDAR, were eliminated as possible solutions due to the short time frame and limited project budget involved.

A drone was able to survey this 200-acre ethanol plant site in one hour. (Image courtesy: FlightlineGeo)

It was decided to use a drone (UAV) and, once survey ground control was placed, the UAV capture of the 200-acre site was completed in a single one-hour flight. The team used ContextCapture to produce the 3D model that engineers needed to quickly calculate the results for the drainage and construction study, which was presented to municipal authorities a few days later.

Moreover, the team leveraged the same work to create a 3MX reality mesh that could then be used for visualisation within the Acute 3D viewer. It took just one week to conceive, capture, process, and deliver the project, and gain approval.

Technical Solutions International (RBI) is a world-class engineering inspection company headquartered in Durban, South Africa. RBI has deployed a solution that combines the use of unmanned autonomous vehicles (UAVs or drones), 3D reality modelling software (ContextCapture), a geographical information system (Bentley MAP), and engineering documentation management (ProjectWise) to manage the entire inspection process.

Its clients include petrochemical, pulp and paper, power generation, and telecommunications firms. The new process enables RBI to deliver more competitive services to its clients that speed survey time considerably and increase the value and visibility of its inspection survey data.

“UCB SA is driving a ‘smart factories’ initiative, leveraging Industry 4.0 and Bentley technology. Our objective is to reorganise production so that we are more adaptable and effective in the allocation of resources. We store our engineering data in ProjectWise for better collaboration among colleagues,” said Joseph Ciarmoli, Head of CAD engineering, UCB SA.

“Using ContextCapture for 3D modelling of our site provides geo-referencing and allocates geographical coordinates to our data. Analysing the 3D model together with the orthophoto drawings provides the official record of our land registry data, waterways, and buildings,” added Ciarmoli.

“We can also bring this 3D model into AECOsim Building Designer to support any building design changes. For proposed modifications to our production facilities, we use OpenPlant Modeler and OpenPlant Isometrics to provide precise 3D data for contractors and to automate the detection of clashes between pipes, structures, and equipment,” observed Ciarmoli.

“The interoperability of Bentley products has made it possible to optimise and significantly reduce the survey and reality modelling time, while also allowing a BIM model to be created that can easily be used by all stakeholders (structural and plant designers), who have decidedly and significantly improved the efficiency of their integrated design, allowing the implementation of the first revamping phase to be reached just three months after delivery of the BIM model,” said Marco Barberini of BM Engineering.

“Reality modelling using ContextCapture from Bentley enabled FlightlineGeo to process a large amount of data into information for the client in near real time. The project was completed ahead of time and under budget, allowing the company to acquire its expansion permit and move on with production of renewable energy,” commented Devon Humphrey, CEO, FlightlineGeo.

“Bentley’s range of products and integration between their products and our automated UAV systems gives us and our clients an added advantage against an ever-improving competitive market. The future we live in today,” said Stanley du Toit, technical and solution director, RBI Technical Solutions International.

3D design and conceptual model of the city of Coatesville’s “The Flats” brownfield redevelopment, a rugged, 30-acre former steel-mill site located 40 miles west of Philadelphia.

Proposed U.S. Infrastructure Plan Supports Reuse of Brownfields and Superfund Sites

The Trump Administration released its ambitious $1.5 trillion infrastructure plan on Feb. 12, 2018 – a plan that includes many provisions focused upon encouraging the reuse of contaminated brownfields and Superfund sites.  On the same day, the Administration released its proposed budget for Fiscal Year (FY) 2019, which called for a 23 percent cut from FY 2018 levels in the U.S. Environmental Protection Agency’s (U.S. EPA) budget.  The U.S. EPA also released its final Strategic Plan for 2018-2022, emphasizing a focus upon the agency’s core mission, cooperative federalism and the rule of law.  What does all of this mean for the redevelopment of contaminated sites in the United States?

Infrastructure Plan

 Financial Incentives

The infrastructure program would establish an Incentives Program that could be very beneficial for state and local reuse of contaminated sites.  Up to $100 billion would be set aside for the Incentives Program, which would fund a wide range of projects, including brownfields and Superfund sites, stormwater facilities, wastewater facilities, flood control, water supply, drinking water supply and transportation facilities.  The funds would be divided among the U.S. Department of Transportation (U.S. DOT), the U.S. Army Corps of Engineers and the U.S. EPA.  The infrastructure plan suggests criteria by which applications would be evaluated, with substantial weight (70 percent) being given to obtaining commitments for non-federal revenue for sustainable, long-term funding for infrastructure investments and for operations, maintenance and rehabilitation. In order to motivate performance, the grant recipient would need to enter into an infrastructures incentives agreement with the lead federal agency and to agree to achieve progress milestones. If the milestones are incomplete after two years, the agreement will be voided unless there is good cause to extend the agreement for another year. No individual state could receive more than 10 percent of the total amount available under the Incentives Program.

Additional funds would be set aside for a Rural Infrastructure Program, including funds for brownfields and land revitalization as well as stormwater and wastewater facilities, drinking water, flood risk management and water supply.  States would be required to develop a comprehensive rural infrastructure investment plan (RIIP). Some funds would also be provided for tribal infrastructure and the infrastructure needs of U.S. territories.

Superfund, Brownfield, and RCRA Sites in the U.S. (U.S. EPA, 2013)

Yet another category of funds would be set aside for the Transformative Projects Program – projects that are likely to be commercially viable but have unique technical and risk characteristics that might deter private sector investment.  Projects that could be covered by this program could fall within commercial space, transportation, clean water, drinking water, energy or broadband.  A total of $20 billion would initially be set aside for this program, with the U.S. Department of Commerce chairing the program.  Funds could be used for demonstration, project planning, capital construction, or all three.  If a project receives financial assistance for capital construction, it would be expected to enter into a value share agreement with the federal government and would be required to publish performance information upon achieving milestones and finishing the project.

The federal government would also dedicate $20 billion from existing federal credit programs, and broaden the use of Private Activity Bonds, to assist complex infrastructure projects. These sources of funding would include: the Transportation Infrastructure Finance and Innovation Act (TIFIA); Railroad Rehabilitation and Improvement Financing (RRIF); Water Infrastructure Finance and Innovation Act (WIFIA); Rural Utility Service (RUS) lending; and Private Activity Bonds (PABs).

The Administration would amend TIFIA to make loans and credit assistance available for other types of projects – such as passenger terminals, runways and related facilities at non-federal waterways and ports as well as airport projects – until FY 2028.  Similarly, the Administration is proposing to amend RRIF to cover the credit risk premium for short-line freight and passenger rail project sponsors, thereby incentivizing more project sponsors to apply for RRIF credit assistance.  It would also like to amend WIFIA (33 U.S.C. 3905) to include flood mitigation, navigation and water supply, and to eliminate the requirement that borrowers be community water supply systems.  The Administration would like to make WIFIA funds available for remediation of water quality contamination by non-liable parties.  It would remove the current spending limit of $3.2 billion, which was put in place when WIFIA was a pilot program, and would amend the restriction upon using WIFIA funds to reimburse costs incurred prior to loan closing.

Liability Relief

The Administration proposes establishing a Superfund Revolving Loan Fund and Grant Program and authorizing sites that are on the National Priorities List (NPL) to be eligible for brownfields grants.  It would amend the Small Business Liability Relief and Brownfields Revitalization Act in order to do so. This would allow non-liable parties to tap into a low-interest source of funds to perform removals, remedial design, remedial action and long-term stewardship.  The program would be targeted toward portions of NPL sites that were not related to the response action; to portions that could be parceled out from the response action site; to areas where the response action was complete but the site had not yet been delisted; or to areas where the response action was complete but the facility was still subject to a consent order or decree.

The Administration would also propose additional liability protections to states and municipalities acquiring contaminated properties in their capacity as sovereign governments by clarifying and expanding the current liability protections in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 101(20)(D).  These governmental entities would be eligible for grants and would be protected from liability, so long as they meet the obligations imposed upon bona fide prospective purchasers (BFPPs), including exercising appropriate care with regard to releases, so long as they did not contribute to the contamination.

The Administration would also give EPA express authority to enter into administrative settlement agreements with BFPPs or other third parties who wish to clean up and reuse contaminated Superfund sites.  This could include partial and early remedial actions.

The Administration’s infrastructure proposal would encourage greater flexibility in funding and execution requirements, as infrastructure needs should be integrated into cleanup design and implementation. Better integration would allow third-party financing and promote site reuse.

Expedited Permitting

The Administration proposed a “one agency, one decision” environmental review structure, in which a single federal lead agency would complete the environmental review within 21 months and issue either a Finding of No Significant Impact (FONSI) or Record of Decision (ROD).  The lead agency would then have another three months to issue any necessary permits, including state permits issued under federal law pursuant to a delegation of authority.  The agency would not be required to evaluate alternatives outside the scope of the agency’s authority or the applicant’s capability.

The Council on Environmental Quality (CEQ) would be directed to revise its regulations to streamline the National Environmental Policy Act (NEPA) process to increase the efficiency, predictability and transparency of environmental reviews.  The Administration would eliminate what it considers to be duplicative reviews by EPA under Section 309 of the Clean Air Act.  It would also encourage each federal agency to increase its use of categorical exclusions (CEs) and would allow any federal agency to use a CE established by another federal agency without undergoing the CE substantiation and approval process.

The Administration would also recommend amending the law to allow federal agencies to accept funds from non-federal entities to support review of permit applications and other environmental documents to expedite project delivery and defray costs.

The Administration would also make changes under the Clean Water Act to eliminate redundancy and duplication. For example, it would allow federal agencies to select nationwide permits without the need for additional Army Corps review. It would authorize the Secretary of the Army to make jurisdictional determinations under the Clean Water Act and would eliminate EPA’s ability to veto a Section 404 permit under Section 404(c). It would allow the same document to be used for actions under Sections 404 and 408 of the Clean Water Act.  The Administration would lengthen the term of a National Pollutant Discharge Elimination System (NPDES) permit from five years to 15 years and provide for automatic renewals.

Similar changes would be made under the Clean Air Act. For example, the Administration would amend the Clean Air Act so that state departments of transportation (state DOTs) and metropolitan planning organizations (MPOs) would need only to demonstrate conformity to the latest National Ambient Air Quality Standards (NAAQS), rather than to old and new standards for the same pollutant. Similarly, MPOs would be allowed to demonstrate conformity in a newly designated non-attainment area within one year after EPA has determined that the emissions budget is adequate for conformity purposes.

The Administration proposes eliminating overlapping Section 4(f) review by the U.S. Department of the Interior, U.S. Department of Agriculture and U.S. Department of Housing and Urban Development before the DOT can be authorized to use parklands or historic sites unless there is no prudent or feasible alternative. This process can add an extra 60 days to the project development review process, even when those agencies have little direct involvement in the project. Another layer of review is required under Section 106 of the National Historic Protection Act (NHPA) for historic properties that is not aided by the Fixing America’s Surface Transportation (FAST) Act. The Administration recommends that an action taken under a Section 106 agreement should not be considered a “use” under Section 4(f), therefore eliminating some duplication and delay.

The Administration would expand the NEPA assignment program to allow DOT to assign, and states to assume, a broader range of NEPA responsibilities, including project-level transportation level conformity determinations as well as determinations regarding flood plain protections and noise policies to make the NEPA assignment program more efficient.

Also proposed by the Administration is a pilot program with up to 10 pilot sites that would be expected to meet performance standards and enhanced mitigation, in lieu of complying with NEPA and relevant permits or other authorizations.

The Administration also proposed judicial reforms, including limiting injunctive relief to exceptional circumstances and revising the statute of limitations to 150 days (rather than a statute of limitations of up to six years).

Proposed Budget

The Administration also released its “Efficient, Effective, Accountable: An American Budget” on Feb. 12, 2018, in which it proposed a 23 percent cut in EPA’s budget compared to FY 2018.  The White House added $724 million to EPA’s budget in a supplemental request, including $327 million for the Superfund program and $397 million for State and Tribal Assistance Grants for Clean Water and Drinking Water State Revolving Funds (SRFs).  At the same time, the Administration proposed cuts of 16 percent in grants to states (to $2.9 billion) and proposed cuts of 35 percent in funding to state and local agencies for air quality management (to $152 million).  The Administration requested $151 million for enforcement at Superfund sites and $20 million for the WIFIA program.

U.S. EPA’s Final Strategic Plan

The FY 2018-2022 EPA Strategic Plan, also released on Feb. 12, 2018, continued to emphasize three main goals: the agency’s Core Mission, Cooperative Federalism, and the Rule of Law and Process.  Among its two-year priority goals, The U.S. EPA intends to make an additional 102 Superfund sites and 1,368 brownfields sites ready for anticipated use (RAU) by Sept. 30, 2019. The U.S. EPA intends to use a “Lean” management system designed to deliver measurable results that align with the Strategic Plan.

Objective 1.3 is particularly relevant to the issues discussed above with regard to redevelopment of brownfields and Superfund sites. Objective 1.3 is to revitalize land and prevent contamination by providing better leadership and management to properly clean up contaminated sites to revitalize and return the land back to communities.  The strategic plan identifies both strategic measures and strategies for achieving these goals. First, it announces the number of sites the agency intends to have RAU by Sept. 30, 2022:

  • 255 additional Superfund sites
  • 3,420 additional brownfield sites
  • 536 additional Resource Conservation and Recovery Act (RCRA) corrective action facilities
  • 56,000 additional leaking underground storage tank (LUST) sites meeting risk-based corrective action standards

The U.S. EPA then announced the strategies by which it intends to achieve these goals, including the use of new technologies and innovative approaches; prioritizing sites that have been on the NPL for five years or more without significant progress; and reprioritizing resources to focus on remedial actions, construction completions, ready for reuse determinations and NPL site deletions.  The U.S. EPA will award competitive grants for the assessment, cleanup and reuse of brownfields sites, and will focus on sites subject to RCRA corrective action and LUST sites.  The U.S. EPA will review more than 12,500 risk management plans (RMPs) to help prevent releases and train RMP inspectors, and it intends to update its RCRA hazardous waste regulations to protect the health of the 20 million people living within 1 mile of a hazardous waste management facility. It will also issue polychlorinated biphenyls (PCB) cleanup, storage and disposal approvals, since this work cannot be delegated to states or tribes.  The U.S. EPA acknowledged that many of the sites that remain on the NPL are large, more complex and may contain multiple areas of contamination, and may contain emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).  The U.S. EPA promised to engage stakeholders at all levels in making cleanup and land revitalization decisions.

As part of Objective 3.1, compliance with the law, the U.S. EPA stated that it would continue to follow an “enforcement first” approach under CERCLA to maximize the participation of responsible parties to perform and pay for cleanups. It indicated it would focus its resources on the highest priority sites that present an immediate risk to human health and the environment, and return these sites to beneficial use as expeditiously as possible.  It will also use advanced monitoring technologies to ensure compliance and work with the Environmental Council of the States (ECOS) and state associations to modernize ways to improve compliance.

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About the Authors

Amy L. Edwards is the co-chair of the firm’s National Environmental Team, as well as its Military Housing and Installations Redevelopment Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USASuper Lawyers and Best Lawyers. After holding several other leadership positions, she will become the Chair of the American Bar Association’s Section of Environment, Energy and Resources (SEER), the pre-eminent national organization representing lawyers in these fields, in 2018-2019.

Nicholas Targ is a San Francisco attorney with more than 20 years of experience assisting clients in the public and private sectors efficiently achieve their land use, environmental and policy goals. He co-chairs Holland & Knight’s national environmental team. Mr. Targ’s practice focuses on complex redevelopment projects, environmental compliance and government advocacy. His representative work includes strategic legal advice on brownfields redevelopment, Superfund compliance, and state and federal grant and policy advocacy. Mr. Targ has successfully advocated for infill funding and policy initiatives on behalf of public, private and nonprofit coalition clients.

This article was first published on the Holland & Knight LLP website.

Recent Trends in the Selection of Remedies at Superfund Sites

The U.S. Environmental Protection Agency (U.S. EPA) recently issued the 15th edition of its Superfund Remedy Report (SRR).  The report is a compilation of over 300 remedies selected in decision documents for contaminated sites on the National Priorities List (NPL) from October 2011 to September 2014.

Summary

Remedies included in the document relate to soil, groundwater, and sediment.  The remedies were counted by specific technology or approach, and also grouped into categories, such as treatment, on-site containment, off-site disposal, monitored natural attenuation (MNA), and institutional controls (ICs). The study analyzed remedies by media (i.e., soil, sediment, and groundwater), and the types of contaminants of concern (COCs) in those media. The evaluation also included vapor intrusion mitigation remedies.

The SRR compiles data on remedies and presents separate analyses for contaminants overall and contaminants in select media (soil, sediment and groundwater). This edition also includes a separate analysis of remedy and response action data for large sediment sites.

Dredging PCB-Contaminated sediment on the Hudson River

For the majority (78 percent) of the 1,540 Superfund sites with decision documents available, treatment has been selected, often in combination with other remedies. Most of these sites have more than one contaminated media, most frequently groundwater and soil. Most sites also have different types of contaminants of concern (COCs): more than half of sites address volatile organic compounds (VOCs), semivolatile organic compounds (SVOCs) and metals, while a quarter of sites address two of these groups.

For FYs 2012 to 2014, remedies were selected in 308 decision documents, including 242 RODs and ROD Amendments, and 66 ESDs with remedial components. Of the 308 decision documents, 188 (61 percent) include a remedy for source materials (such as soil and sediment) and 160 (52 percent) for groundwater. Remedies were also selected for soil gas and air related to vapor intrusion.

Source Remedies

For this three-year period, nearly half of decision documents with source remedies include treatment. A quarter of all source decision documents include in situ treatment. Soil vapor extraction, chemical treatment, and in situ thermal treatment are the most frequently selected in situ treatment technologies for sources with soil being the most common source medium addressed. Physical separation, recycling, and solidification/stabilization (S/S) are the most common ex situ treatment methods. Metals, polycyclic aromatic hydrocarbons (PAHs) and halogenated VOCs are the COCs most commonly addressed.

Table 1: Summary of Source Control Remedies

Treatment
• Chemical, biological, or physical means to reduce toxicity, mobility, or volume of contaminated source media

• Can be either in situ or ex situ

• examples include chemical treatment and in situ thermal treatment

On-site containment
• Examples include the use of caps, liners, covers, and landfilling on site
Off-site disposal
• Includes excavation and disposal at an off-site facility
Monitored natural attenuation (MNA)
• Reliance on natural processes

• Natural attenuation processes may include physical, chemical, and biological processes

Monitored natural recovery (MNR)
• Reliance on natural processes to reduce risk from sediments

• Natural attenuation processes may include physical, chemical, and biological processes

Enhanced monitored natural recovery (EMNR)
• Combines natural recovery with an engineered approach for sediments

• Typically includes placing a thin layer of clean sediment to accelerate the recovery process

Institutional controls
• Nonengineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and protect the integrity of the remedy

• Examples for source media include land use restrictions and access agreements

Other
• Source control remedies that do not fall into the categories of source control treatment, on-site containment, off-site disposal, MNA, MNR, EMNR, or engineering controls

• Examples include wetlands replacement and shoreline stabilization

Sediment Remedies

Of the 188 recent source decision documents, 39 include a remedy for sediments. Most of the sediment decision documents (87 percent) include dredging, excavation, off-site disposal or on-site containment as part of the selected remedy. Some treatment was also selected — for example, in situ amended caps and ex situ and in situ S/S. Examples of other remedies include wetlands replacement and enhanced or monitored natural recovery (EMNR or MNR). Two-thirds of the sediment decision documents include institutional controls (ICs). Metals, PAHs and polychlorinated biphenyls are the COCs most frequently addressed.

EPA also analyzed newly acquired remedy and response action data on the largest sediment sites, known as Tier 1 sediment sites. The data include 112 actions for 66 sites. Some of these actions have progressed to design or implementation. Most remedies for these sites include dredging and excavation (84 percent), 48 percent include residual caps, and 29 percent include engineered caps designed to isolate contaminants from the waterway. A quarter of the Tier 1 sites include MNR and 18 percent include EMNR.

The U.S. EPA analyzed the contaminants of concern (COCs) addressed by sediment remedies in recent decision documents.  Over three-quarters of these documents include metals. PCBs and PAHs are the next most frequent categories of COCs with 44 percent each, as seen in the Figure below.

Figure 1: Detailed COCs in Decision Documents with Sediment Remedies

Groundwater Remedies

For the 160 groundwater decision documents signed in FYs 2012 to 2014, the groundwater remedies continue to be primarily a mix of in situ treatment, pump and treat (P&T), and monitored natural attenuation; most also include ICs. The use of in situ groundwater treatment continues to rise and is now selected in over half of groundwater decision documents. Of these, bioremediation and chemical treatment remain the most frequently selected. The majority of in situ bioremediation remedies specify anaerobic bioremediation, and more than half of chemical treatment remedies specify in situ chemical oxidation. The selection of P&T in groundwater decision documents has decreased significantly since the early 1990s and reached its lowest, 17 percent, in FY 2014. Containment technologies (vertical engineered barriers such as slurry walls) were selected at a few sites. By far, halogenated VOCs (primarily chlorinated VOCs) are the most common type of groundwater COC, addressed in 72 percent of recent groundwater decision documents.

Table 2. Summary of Groundwater and Vapor Intrusion Remedy Categories

Groundwater
In situ treatment
• Treatment of groundwater in place without extraction from an aquifer

• Examples include in situ chemical oxidation and in situ bioremediation

Pump and treat (P&T)
• Pumping of groundwater from a well or trench, followed by aboveground treatment

• Examples of aboveground treatment include air stripping and granular activated carbon

Monitored natural attenuation (MNA)
• Reliance on natural attenuation processes

• Natural attenuation processes may include physical, chemical, and biological processes

Containment
• Containment of groundwater using a vertical, engineered, subsurface, impermeable barrier
Institutional controls
• Examples include drilling restrictions and water supply use restrictions
Alternative water supply
• Examples include installing new water supply wells, providing bottled water or extending a municipal water supply
Other
• Groundwater remedies that do not fall into the categories of in situ treatment, P&T, MNA, containment, institutional controls, or alternative water supply

• Examples include drainage/erosion control and wetlands restoration

Vapor intrusion
Mitigation
• Mitigation of soil gas or indoor air to reduce exposure to vapor contamination in buildings

• Examples include active depressurization technologies and passive barriers

Institutional controls
• Examples include land use restrictions and vapor intrusion mitigation for new buildings

Vapor Intrusion Remedies

EPA selected vapor intrusion mitigation for existing structures in nine of the recent decision documents, and ICs for either existing structures or future construction in 34 of these documents. Some ICs restrict the future use of structures to avoid vapor intrusion exposure and others require the installation of mitigation systems as part of future construction. Active depressurization was the most common mitigation method specified, followed by passive barriers and subslab ventilation systems.

Combined and Optimized Remedies

In this report, the U.S. EPA also discusses the use of combined remedies and optimization reviews. The combined remedy highlights provide examples of recent decision documents where remedies are combined spatially or in sequence. The optimization highlights provide examples of how optimization efforts have informed remedy decisions in recent decision documents.

The remedy and site information provided in this report can help identify program needs for expanded technical information and support. For example, growing use of in situ groundwater technologies suggests the need for additional knowledge and support associated with those technologies. This analysis also provides information of value to stakeholders including technology developers; consulting and engineering firms; and federal, state, and tribal remediation professionals. In particular, developers and service providers can gain insight into the demand for specific remedial technologies.

 Conclusions

The analysis of most recent Superfund decision documents shows continued selection of a full range of treatment, containment, and disposal technologies and approaches for both source material and groundwater. Selection of some remedies is increasing in frequency (such as in situ groundwater technologies), while others are decreasing (such as pump-and-treat). Remedial approaches, including in situ bioremediation, are often combined in time or space to address different areas of the site or applied sequentially. Remedy optimization and reevaluation has resulted in changes to previously selected or implemented cleanup approaches. Overall, most Superfund sites contain different types of COCs: more than half of sites with remedies address VOCs, SVOCs, and metals/metalloids, and almost a quarter of sites address two of these groups.

 

 

The Supreme Court of Canada to Decide who pays to Clean-up Toxic Industrial Sites

The Supreme Court of Canada is hearing a controversial case this week concerning who is responsible for cleaning up toxic industrial sites when a company goes bankrupt.

At stake is potentially billions of dollars in environmental clean-up costs. And entities ranging from governments to Canada’s big banks to oil and gas companies and farmers are all looking to ensure that they don’t end up on the hook for cleaning up toxic sites – many of them in remote rural and northern areas of the country.

The case itself focuses on a small Alberta oil company, Redwater Energy, which entered creditor protection in 2015. Only a few of the company’s assets had value, so the bank wanted to sell those wells to recover some of its debt and abandon the rest of the oil and gas sites. The question became whether Redwater’s assets should help pay its debts or be used to pay for the cleanup cost of its worthless oil and gas wells?

The case will address a fundamental public policy dilemma about what happens when a resource company bites the dust. For instance, every mine in the country has environmental regulations attached to its licence about reclaiming the site when the mine closes.

But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab?

The question for the Government of Alberta and area farmers that had Redwater oil and gas wells on their land became whether Redwater’s assets should help pay its debts or be used to pay for the clean-up cost of its worthless and contaminated work sites?

The Supreme Court case addresses a fundamental public policy dilemma about what happens when a resource company fails. Every mine operation in Canada has environmental regulations attached to its licence about reclaiming the site when the mine closes. But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab when the provincial government pays to clean it up? And how much cost should farmers and other landowners bare for clean-up and reclamation costs?

“We need to be able to ensure the people of Alberta, collectively, are protected,” Alberta Premier Rachel Notley told reporters earlier this week.

The Alberta Energy Regulator (AER) says there are approximately 1,800 abandoned oil and gas sites in that province alone and pegs the cost to remediate them at $8.6 billion.

If the Supreme Court sides with previous court rulings, the AER will likely respond by increasing the orphan levy imposed on well licensees. However, a portion of the expense will inevitably fall to the provincial government, and thus to taxpayers. But if the Supreme Court decides to reverse the decision, it will create hesitancy among lenders. Financial institutions will likely respond by tightening their purse strings as they begin pricing the risk into new loans made out to the industry.

This case has consequences that reach far beyond one small energy company. The Redwater case could act as precedent in other provinces. If the previous rulings are upheld, it will send a clear signal to natural resource companies’ creditors that bankrolling fossil fuel infrastructure, mining projects, and pulp and paper mills without accounting for clean-up costs is not only acceptable, but encouraged in a legal climate where the public—not the polluter—pays.

“The Redwater decision impacts Alberta’s constitutional right to manage its own resources,” said AER spokeswoman Cara Tobin, adding that “By rejecting the polluter pays principle that underlies virtually all of Alberta’s oil and gas legislation, it’s shifted liability from the polluter to innocent third parties and the public.”

The provincial governments of Ontario, which currently has about 2,400 oil and natural gas producing wells, along with British Columbia and Saskatchewan have also joined the Supreme Court Case, which will be heard in Ottawa this week. The Canadian Association of Petroleum Producers is also an intervener in the legal case.